What's Often Forgotten About Improper Joinder Demurrers: Many Times, You Want to Lose

When I say, "you want to lose," I don't mean just so you'll have an issue on appeal (though there is that). Or that winning on appeal might mean it's too late for the state to reindict. Rather, I mean that losing the demurrer pre-trial may help you win at sentencing.

This is what I wrote on the topic over two years ago:

A law school professor once said that, in jury selection, a good lawyer identifies the jurors he doesn't want and bumps them. A great lawyer identifies the jurors he doesn't want and gets the other side's attorney to bump them.

A similar analogy holds true with the issue of criminal episodes. A good defense lawyer, at sentencing, will persuasively argue why the alleged crimes arise from the same criminal episode, and thereby put limits on the maximum sentence his client can receive. A great defense lawyer will get the prosecutor to argue that the crimes arise out of one criminal episode, thereby guaranteeing a favorable result.

The question is, how?

The answer is easy, but it's premised on an argument that I'd be surprised if 5% of defense lawyers are aware of.

When multiple counts are joined in a single indictment, the defendant may move to sever those counts for trial. The defense almost always loses this argument, but in some cases, it's not even the right argument. According to Oregon statutes, a motion to sever is only appropriate for those counts that are properly joined but too prejudicial to try in the same case. A demurrer is the appropriate remedy when the counts are improperly joined.

Criminal charges are only properly joined in the same indictment when the charges are:

(A) Of the same or similar character;(B) Based on the same act or transaction; or(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

ORS 132.560(1)(b)

If none of those requirements are satisfied by the counts in a single indictment, the remedy is a demurrer.

135.630 Grounds of demurrer. The defendant may demur to the accusatory instrument when it appears upon the face thereof:(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560. . . .

So, let's take a perfect example. Assume the defendant is charged in one indictment with Felony Failure to Register as a Sex Offender and Felon in Possession of a Firearm. Not a sympathetic combination of charges. Assuming a conviction for a prior sex offense, the defendant is looking at prison on each of the charges.

The two counts in this hypothetical have been charged together because they arise from the same traffic stop. Officer Smith had not only learned that the defendant hadn't registered, but a firearm was found in the backseat.

A good defense lawyer would be aware, however, that if the case goes to sentencing after an unsuccessful trial, a determination that there was only one criminal episode would be very important to his client. If there is only one criminal episode, and the felon in possession charge was run consecutively to the failure to register charge, the shift-to-I rule would kick in and the defendant would be looking at probation - rather than prison - on the second charge.

But at sentencing, the prosecutor could argue that, no, in fact, these are two criminal episodes. This is because neither of the counts are cross-related. Further, only one involves the possession of contraband, not both, so State v. Boyd wouldn't apply. And let's also assume that the trial court does not believe Mallory is still good law. (See the a dozen posts in this series for a discussion of each of those points.)

The prosecutor might be right that these two offenses constitute separate criminal episodes. And if the judge agrees, the defendant is facing consecutive prison sentences. If the judge has that power, he or she is likely to apply it to a convicted sex offender with a firearm.

Let's rewind and see what a great defense lawyer would have done instead.

Prior to trial, the defendant should have demurred to the indictment on the grounds that the two counts were improperly joined. The prosecutor - who doesn't want to go back to grand jury, much less try the case twice, but also wants a single jury to hear both that the defendant is a sex offender and possesses a firearm - argues the opposite. These two counts are properly joined, because they both occurred during one traffic stop, and therefore arise from a single transaction.

The great defense lawyer shrugs as the trial court rules for the prosecutor and keeps the two counts together for trial.

By defeating the demurrer, the prosecutor is locked into the position that these two counts come from one criminal episode (which is synonymous with "a single transaction.") The defendant no longer risks consecutive prison sentences. And as a bonus, if the case goes up on appeal, the Court of Appeals might agree with the defendant regarding the demurrer and reverse the convictions, when it is too late for the state to re-indict.

How often can this strategy be used? Its utility probably varies throughout the state, depending on the practices of the particular county, but I'd estimate that perhaps 5-10% of indictments from Multnomah County involve the improper joinder of counts. (Even then, not all improperly joined counts would be impacted by the shift-to-I or 200% rules.) Any charge joined to a failure to register charge is probably improper, since it would be a rare situation where the two counts cross-relate. In addition, PCS and ID Theft, or Felon in Possession and Forgery, or even PCS and Failure to Appear, are examples of charges that may not be properly joined, even if they arise from the same police contact. Can't say for certain until a few more cases get up to the Court of Appeals, but however the COA rules, future defense lawyers will be able to use the results to their clients' advantage.